Illegality as a ground of review Illegality as a ground of review is based primarily on the doctrine of ultra-vires. If a statute empowers a decision maker to do X and the decision maker does Y then the decision would be outside the power given to him, therefore will be illegal on the basis of it being ultra vires. Further if the decision maker exercise power in an instance where he doesn’t have such power, this too would be considered illegal. While this is illegality in its strict sense, courts have been willing to consider the concept of illegality in a broader sense. That is to say an act of abuse of power would also be considered illegal. However, this is of lesser clarity than Illegality in strict sense. In the leading judgement by Lord Diplock in GCHQ case he stated that illegality allows a decision to be completely vitiated (Nullified) or overthrown. The decision maker has a duty to understand and apply the law correctly. Where he fails to do so the courts must interfere and declare such decision illegal. Grounds 1. Decision maker acts beyond the powers conferred to him 2. Decision maker ignores relevant considerations and takes into account irrelevant considerations. 3. Improper purpose and bad faith 4. Fettering discretion 5. Acting on no evidence 6. Onerous conditions attached to a decision 7. Unauthorized delegation Ground 1. Acting beyond the Case Facts Lakers Airways v Department of Trade A license was granted to Laker airways by the civil aviation authority. power vested Subsequently when the government was changed new guidelines were upon issued stating that the license could only be granted with the consent of British airways. The civil aviation authority used this new guideline to revoke license of Laker airways under the old guidelines. Court of Appeal held that the revocation of the license was in fact unlawful and that revoking an already granted license would give retrospective effect to the new guideline. The decision was quashed on the ground of acting beyond power vested upon the authority. 2. Decision ignores maker Roberts v Hopwood Decision to pay male and female workers equally (4 Pounds a week) Relevant consideration – Cost of living was reducing relevant considerations, Irrelevant consideration – Being a model authority takes into account HOL held that if the authority took relevant consideration into account irrelevant they would’ve reduced wages considerations Pickwell v Camden BC The council decided to pay an additional amount of money to solve an industrial dispute. It was argued that it was an irrelevant consideration. However courts held that the payment was reasonable and that the need to resolve the dispute promptly was a relevant consideration. Bromley LBC v Greater LBC Decision – Public transport was decreased by the government to increase public transport usage and reduce traffic. Tax paid by the rate payers was simultaneously increased Relevant consideration – Impact the decision would make on rate payers Irrelevant consideration – the decision being a part of an election promise R v Broadcast Complaint Ex parte Owen The courts held that the government authority had reached the correct decision, however had taken into account irrelevant consideration. When reaching such a decision the court held the decision was not being invalid and was in fact intra- vires. Whether the local authority may take into account the financial resources when accessing individual needs was a relevant consideration. R v Gloucestershire CC Ex parte Burry Financial status of the authority is a relevant consideration. Padfield v Ministry of Agriculture, The legislation granted the minster the power to order investigation in Fisheries and Food relation to the manner in which milk marketing teams will be carried out. Padfield made a complaint which the minister refused to grant. The minister was of the view that he had absolute discretion to decide when an investigation should be carried out or not. HoL held that by failing to order for an investigation the minister had frustrated the aims and objectives of the legislation. 3. Improper purpose Professor Evans and bad faith “we must consider what the purpose of power is prior to exercising it. If the power was used for its true purpose it is immaterial that it enables an ancillary objective. AG v Fulham Corporation A statue empowered a local authority to establish public wash houses for non-commercial use of its local residents. The local authority used this power to set up a laundry service on a commercial basis. Courts held that it was an ultra-vires propose therefor it is illegal. Congrave v Home Office The SoS revoked the license (TV) of those who sought to renew their license earlier in order to beat the price increase, the court held that it was an improper purpose. However if an incidental benefit is accrued to the decision maker when exercising the power this will not be concerned. Westminster Corporation v London A local authority was granted power to build public conveniences. North Railway Company However, while exercising the power the local authority created a subway under a street. It was questioned whether the executive has exercised its discretion in order to achieve an improper purpose. HoL held that the construction of the subway was incidental to the lawful exercise of power by the executive. Roncarelli v Duplessis A liquor license was revoked of a person who held such a license legally acquired due to the fact that he had provided sureties for Jehovas Witnesses arrested by the police on a regular basis. Authority has rights to revoke license but it was challenged on the basis that it was motivated by bad faith. The Supreme Court of Canada held that the authority had acted arbitrarily without legal justification. 4. Fettering Stringer v Minister of Housing and This concerned the legality of a policy to restrict development of land discretion which interfered with the ‘Jodrell Bank Telescope’. The courts held that Local Government maintaining a general policy is acceptable as long as the authority did not fail to take into account the relevant unique circumstances of each application. R v Chief Constable of North Wales The police disclosed the information of a former paedophile to the Police Ex Parte AB public. Records recognised the tension that existed between the rights of the former offender and the interest of the community. The police had not implemented a blanket policy of disclosure and instead had considered the merits of the case carefully before disclosing information. Therefore the discretion was not fettered. 5. Acting evidence on no Coleen Properties v Ministry Housing and Local Government of A ministerial order which confirmed a slum clearance scheme was quashed by the CoA when it was found that there was no evidence supporting such an order. In fact, a public inquiry had recommended against such a slum clearance scheme. R v Home Secretary Ex Parte Zamir HoL held that an immigration officer who was empowered to refuse leave for a person who enters the country if he was satisfied of the existence of a certain fact was not a liberty to refuse leave to enter the country if there was no evidence to support it. 6. Onerous condition PYX Granite v Minister of housing and A planning permission was granted by the local authority which was attached to a local government decision conditional upon the company constructing a road of their own expense to provide a public right of passage which was ancillary to the development was held to be ultra-vires and illegal. 7. Unauthorised Local Government Board v Aridge Delegation ‘delegatus non The courts accepted that while a minister cannot carry out all his functions himself he nevertheless remains constitutionally and protest personally accountable for his conduct. delegata’ Carltona v Commissioner of Works The courts recognised that ministers have so many duties that no minister could personally attempt them. Hence they could be carried out by responsible officials in the departments. However, this principle only allows for the minister to allow his officers to carry out administrative functions. Any substantive function being delegated would still be illegal. Bernard v National Dock Labour Board The board sub-delegated its powers to a ports manager to carry out certain disciplinary action which were to be carried out by the board. Court held that such functions would not be delegated. Hence it was illegal.
